# Hoffer v. Burd

> North Dakota Supreme Court · March 24, 1951 · 78 N.D. 278

URL: https://www.frixlaw.com/law-library/cases/6740913

## Case

- **Full name:** EDWIN HOFFER v. HENRY W. BURD and VALLEY SERVICE, Inc., a corporation
- **Court:** North Dakota Supreme Court
- **Decided:** March 24, 1951
- **Citations:** 78 N.D. 278; 49 N.W.2d 282; 1951 N.D. LEXIS 89
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Burke, Christianson, Grimson, Morris, Sathre, Suthre
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6740913

## Opinion text

Per Curiam.
A rehearing was had upon the petition of the defendants. In the petition defendants laid especial stress on the alleged misconduct of counsel for the plaintiff in his argument to the jury. It appears that the witnesses called on behalf of the plaintiff had. been subpoenaed and in his argument plaintiff’s counsel dwelt on this fact and argued that witnesses who had been subpoenaed were more likely to tell the truth than those who appeared and testified without having been subpoenaed. In speaking of one of the witnesses who had testified in behalf of plaintiff he said: “He didn’t come up and volunteer his testimony like Mr. B. (a witness who testified on behalf of the defendants) did.” He said: “In my experience a witness testifying under a subpoena is more likely to tell the real truth.” He further said: “Beware of a volunteer.” “Be careful of a volunteer witness.” In referring to the testimony of the different witnesses he continually stressed that witnesses to-whom he referred by name, who had testified fortthe plaintiff, had been subpoenaed. In speaking of a witness for the *299 plaintiff he said, “Remember he is disinterested and another subpoenaed witness here.” Referring to the proof that plaintiff had adduced he said, “Subpoenaed witnesses. We can’t sandpaper those witnesses.” Counsel for the defendants objected to the statements of counsel for the plaintiff that “we don’t sandpaper witnesses.” That such statement was prejudicial and a clear inference that “defendants do sandpaper witnesses,” and asked the court to declare a mistrial. As shown by the former opinion the court denied the motion for a mistrial. In his final argument to the jury plaintiff’s counsel referred to the objection that had been made to his statements relating to “sandpapering witnesses.” He stated that he did not mean to infer that opposing counsel had “sandpapered” witnesses. He stated: “I said that a witness that is under subpoena, there is not a possibility of sandpapering him, and the witnesses we had were under subpoena.” In his argument plaintiff’s counsel made other statements that are criticized by defendant’s counsel. Among such statements was one to the effect that one of counsel for the defendants “represented big corporations in North Dakota.” The statement should not have been made, but there is no likelihood that it affected the verdict and deprived the defendants of a fair trial.
The argument that witnesses who testified after being subpoenaed are more likely to tell the truth than those who are called to testify without having been subpoenaed and that the witnesses that have been subpoenaed cannot be “sandpapered” presents a more serious question. These statements were not made on the spur of the moment. They were apparently made deliberately, as the foundation for such argument had been laid in the course of the trial and in the examination of witnesses. The purpose of the argument is clear. It was to convey the idea that a person, after being subpoenaed, is more credible and more likely to tell the “real truth” than a witness who had not been subpoenaed and that this statement is based upon the experience of plaintiff’s counsel. That “subpoenaed witnesses” cannot be sandpapered; that “there is not a possibility of sandpapering” “a witness that is under subpoena,” with the inference that these assurances do not apply to witnesses *300 who have not been subpoenaed. There was, of course, nothing in the evidence on which to base any such assertions. To subpoena a witness does not give his testimony any greater standing or force or credibility than if the witness was produced and testified without having been served with a subpoena. The argument was improper and unwarranted and defendants’ counsel was justified in objecting to the argument and it should have been dealt with by the trial court more specifically and forcefully than was done; nevertheless, in view of the record as a whole we do not believe that the improper argument constituted a ground for ordering a mistrial or for a new trial. The fact that counsel is guilty of misconduct in making an improper argument does not require or justify a reversal of the verdict that has been rendered unless it is likely that the misconduct affected the verdict and thus deprived the party against whom the argument was made of a fair trial. If it appears that it is not likely that such conduct affected the verdict or deprived the party against whom the verdict was rendered of a fair trial, then the verdict will not be disturbed.
A litigant should not be deprived of a verdict in his favor and thus penalized because of the improper conduct of his counsel unless it is likely that such conduct resulted in prejudice to the adverse party and operated to deprive him of a fair trial. 3 Am Jur, Appeal and Error, See 1062, p 609, Sec 1063, p 610, Sec 1072, p 613, Sec 1075, p 614; Northern Trust Co. v. Bruegger, 35 ND 150 , 175, 159 NW 859, 867 . After careful consideration of the record we do not believe that the improper argument could have, affected the verdict.
Defendants also contended that the trial court erred in reading the pleadings and in giving “stock instructions” wherein reference was made to certain statutory provisions concerning the operation of motor vehicles, not pertinent to the issues involved in this action. There is some merit in the criticism of the instructions. This court has criticized and disapproved the practice of reading the pleadings as a part of the instructions. Black v. Smith, 58 ND 109 , 224 NW 915 . The instructions should cover only questions at issue as presented by the pleadings and the, evidence that has been introduced. However, it does *301 not appear likely that any prejudice could have resulted from the reading of the pleadings or from the instructions that were not pertinent, hut the instructions were of such nature that while wholly unnecessary the jury could not have been misled thereby.
We have again considered the various assignments of error presented on this appeal and discussed in the original opinion and while we disapprove of the statements made by plaintiff’s attorney in his argument, referred to above, as well as the practice of reading the pleadings in the course of the instructions to the jury and the giving of instructions which are not necessary for the guidance of the jury, nevertheless, we do not believe that any of these affected the verdict and deprived the defendants of a fair trial. We adhere to the views expressed in the original opinion that the evidence is sufficient to sustain the verdict and that the verdict is not excessive. On the record as a whole we do not believe that the defendants were deprived of a fair trial or that there is any likelihood that a new trial would change the result.
Morris, O.J., and Christianson, Sathre and Burke, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6740913. Public record. Not legal advice.